TBA Law Blog


Posted by: Lucian Pera on Mar 1, 2018

Journal Issue Date: Mar 2018

Journal Name: March 2018 - Vol. 54, No. 3

From time to time, our lawyer regulator, the Tennessee Board of Professional Responsibility (BPR), proposes changes to our disciplinary rules. Five years ago, the BPR asked our Supreme Court, in a formal 2013 petition, to adopt a new rule intended to bar lawyers from “knowingly manifest[ing], by words or conduct, bias or prejudice based on” race, sex and a number of other characteristics.

The BPR Sees a Need

The BPR reviews every complaint filed against any Tennessee lawyer. In 2013, based on what they were seeing, in lawyer conduct and complaints, they wanted the Court to enact a new, better rule to protect clients and the public. They were convinced, and they told the Court, that they were seeing lawyer misconduct the rules didn’t reach. Why?

Well, the BPR concluded that the only current Tennessee ethics rule on this subject was a comment to the black-letter rule that bars “conduct prejudicial to the administration of justice.” On the right facts, that comment said those “knowingly manifest[ing], by words or conduct, bias or prejudice based on” race, sex and a number of other characteristics — the same formulation the board wanted in a black-letter rule — could be guilty of “conduct prejudicial to the administration of justice.” That existing comment was inadequate. It did not grant authority needed to discipline lawyer conduct the BPR believed should be punished as misconduct.

Five years ago, the Tennessee Bar Association disagreed. The TBA ethics committee said the proposed BPR language — essentially moving Comment language to black letter — left important questions unanswered, was too broad and too narrow in different ways, and would be very difficult to enforce fairly.

The Court denied the BPR’s petition, and the rules stayed as they were.

Fast-Forward to 2017

Over the course of more than two years, the American Bar Association’s ethics committee developed new rule language adopted by the ABA House of Delegates in 2016. Its drafting drew on the language of existing black-letter rules on this subject in 25 jurisdictions (not including Tennessee) and on the experience of disciplinary counsel and courts interpreting and enforcing those rules. Without a doubt, the ABA improved on those existing rules.

With the ABA’s work as a starting point, the TBA ethics committee last year spent months considering whether this new language met its concerns. After much debate, the committee agreed to propose the ABA black-letter language, but proposed to make some significant changes in the comments. In June 2017, after vigorous debate, the TBA Board of Governors unanimously agreed, and we prepared to file a petition with the Court. (The TBA House of Delegates had not agreed, but TBA governance provides that a policy position can be adopted by a super-majority vote of the TBA Board, even if the House opposes.)

Then, something interesting happened.

A Joint Petition

On the theory that the BPR might still see a need for a rule, the TBA asked whether the BPR would join a petition to the Supreme Court for adoption of this new rule. The BPR agreed. On Nov. 15, 2017, the BPR and the TBA filed a joint petition asking the Supreme Court to adopt a new ethics rule that would become Tennessee Rule of Professional Conduct 8.4(g).
As far as anyone can recall, that’s the first time that the BPR and the TBA have jointly petitioned the Court for an ethics rule change.

Comments Needed

On Nov. 21, 2017, the Court put the rule out for comment by the bench, bar and public with a comment deadline of March 21, 2018. The TBA wants everyone who has an opinion on this to comment. (See instructions on commenting below)

What the Proposed Rule Does Proposed Tennessee Rule 8.4(g):

  • prohibits discrimination or harassment by lawyers based on a list of characteristics such as race, sex and religion;
  • exempts decisions about whether to accept, decline or withdraw from a representation, as well as how much to charge or collect as a fee;
  • exempts any legitimate advocacy or legitimate advice;
  • limits that ban to conduct a lawyer knows or reasonably should know is harassment or discrimination; and
  • limits the ban to any conduct related to the practice of law, including client representation, running a law office and some other limited activities, with an explanation of what these are.

What It Doesn’t Do

Tennessee’s proposed version of Rule 8.4(g) does not adopt the ABA model rule. We’ve improved it.

For example, the Tennessee proposal adds clearer language confirming what it doesn’t cover, including conduct not related to the practice of law and any speech protected by the First Amendment.

The proposed Tennessee Rule does not violate lawyers’ free speech rights. Yes, words spoken by a lawyer could be the basis for a violation of the proposed rule. Lying to a court is clear misconduct, too. But to violate the rule, the conduct has to be a particular kind: discrimination or harassment.

As much as anyone, I understand the need to jealously guard First Amendment rights of lawyers (and everyone else). Those who share these concerns might read a comment to our Court by law professor Josh Blackman of South Texas College of Law. He has written critically of the ABA version on constitutional grounds, but he now suggests that our Tennessee improvements productively address a number of his concerns.

There’s also no factual basis for concern that enactment of a new rule on this subject will open the floodgates of unfounded complaints. Reports collected by the ABA from disciplinary counsel in jurisdictions that have had such rules for as long as 20 years are clear: they have seen no surge in complaints or discipline, and only a very small number of lawyers have been disciplined under their rules.

Getting the Right Language

My position is simple. We need a rule banning this kind of conduct — discrimination and harassment — by lawyers in their activity as lawyers. The TBA and the BPR agree a rule is needed.

What language does the job? The ethics nerds of the ABA came up with a well-drafted rule; the ethics nerds of the TBA ethics committee improved it for Tennessee. Every legitimate drafting issue — there are many — has been addressed. If you disagree with how one of these is addressed — or more precisely, if the Court disagrees — the language can be tweaked with some ease. But bad drafting is no longer an excuse for not having a needed rule. The Tennessee proposal builds on the best language devised, which in turn improves on the rules now in place in 25 jurisdictions.

Need?

The experience of our lawyer regulator has convinced it that there is a need for a rule banning discrimination and harassment by lawyers. They’ve told the Court this twice in the last few years. And the TBA has now agreed. Still, despite this, I invite each of you to thoughtfully consider whether a rule barring discrimination and harassment by lawyers acting in their role as lawyers is needed

For those who think not, and especially for those in doubt, I urge you to ask a few folks you trust a question with an open mind: Should there be a rule banning lawyers from discriminating or harassing people in their conduct as lawyers?

Ask a young lawyer who might be part of the profession 40 years from now — say, in 2058. Or ask a woman or minority lawyer who might have seen or felt harassment or discrimination from fellow lawyers.

More importantly, ask a thoughtful non-lawyer — a client, a spouse, your CPA. After all, our rules are written to protect and serve clients and the public.

Based on my experience, you may be surprised at the answers. What I have most often heard, especially from non-lawyers, opened my eyes: “What — you mean there’s no rule now that would punish a lawyer for doing that?”

Want to Know More?

Pretty much everything you need to know about the proposed Tennessee Rule 8.4(g) is posted on the TBA website at www.tba.org/info/proposed-ethics-rule, including:

  • The joint BPR-TBA petition for the rule change, which is the best summary of the proposal. The petition was not included in the Supreme Court’s Order publishing the proposal and seeking comment.
  • Stephen Gillers, “A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Mode Rule 8.4(g),” 30 Geo. J. Legal Ethics 195, 198, 208-11 (2017). A very readable article tracing the history of the ABA model rule, as well existing rules in various jurisdictions.
  • Professor Josh Blackman’s comment to the Tennessee Supreme Court on First Amendment concerns, including his article criticizing the ABA model rule.

Please Comment

To comment to the Court on the proposed rule, either email appellatecourtclerk@tncourts.gov or mail by March 21, 2018, to James M. Hivner, Clerk, Re: Tenn. Sup. Ct. R. 8, Proposed Rule 8.4(g), Docket No. ADM2017-02244, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407.


Lucian T. Pera LUCIAN T. PERA is a partner in the Memphis office of Adams and Reese LLP. A Memphis native, he is a graduate of Princeton University and Vanderbilt University School of Law. He is a former TBA YLD President and a past ABA Treasurer. His wife Jane thinks the idea of Lucian asking clients and others questions, and listening to what they think, would be a very fine idea. You can reach him at Lucian.Pera@arlaw.com.